It is reasonable to believe that someone attempted to commit fraud in
a commercial context when Barack Obama´s literary agency published
that he was born in Kenya. The few known facts seem to provide enough
to constitute probable cause to probe whether an unlawful act
occurred. Regardless of whether this is probed at law, and depending
on what other underlying facts may come to light, there appear to be
troubling legal and moral issues involved.

The free market depends on honest quid pro quo. Fraud is generally
defined as misrepresenting a material fact to induce another person
to part with something of value.

The quid pro quo between private parties to a transaction need not be
equal in the eyes of others, or government regulators, but just fair
to the parties to the transaction.

It may be of more value to me than to others to acquire what you have
or do, so that I may be willing to pay more than the market price.
However, if you were to intentionally deceive me about your goods or
services to lead me to believe that they have a higher value, you
have committed a fraud.

There are mutual incentives for honesty in the free market, because
once someone is exposed as dishonest, fewer if any people will
transact business with that person. Just as mutual honesty is
incentive to play fair in the free market, the free market is an
incentive to mutual honesty.

The free market does not always result in honest transactions because
people are not perfect. Penalties for fraud developed under the law
to punish those who intentionally disrupt the integrity of honest
transactions.

The law was originally designed to punish those who violated, whether
intentionally or by lack of care, the covenants of civil society, and
make whole those who were harmed by the wrongful conduct of others.
That system goes back to the Old Testament, and the English common
law on which American law was first based. Unlike many laws developed
under liberal big government since then, the system was quite logical.

Without knowing all the facts yet, there at least appears to be cause
to believe that Barack Obama, or someone acting directly on his
behalf, misrepresented that Obama was born in Kenya, and that the
statement was more than just a fact-checking error by his literary
agent.

Such a false statement in the context of trying to obtain a contract
for a book -- a commercial transaction -- might make the
misrepresentation punishable at law. On the other hand, the
misrepresentation may have been designed to induce more people to buy
the prospective book, which would be another legal no-no.

To be punishable at law, the misrepresented fact needs to be what the
law calls "material," meaning important to the formation of
transaction. The fact that the book transaction was not consummated
makes the misrepresentation what the law calls "inchoate," meaning
incomplete but nevertheless attempted. We´ve all heard of inchoate
lawbreaking such as attempted larceny, and so on.

One of the most important rules of successful marketing is to
distinguish your product from others. Merely heading the Harvard Law
Review is not a story worthy of a book. Being the first Kenyan-born
person to do so, well, that´s more of a story to sell. The pre-
birther claim of Obama´s Kenyan birth fits clearly the marketing rule
of distinguishing your product or services. It enhanced the value of
the proposed book to both the literary agent and the prospective
purchasing public.

The fact that a false narrative of Obama´s Kenyan birth was created
and remained in the public domain for so long is not evidence per se
that a fraud was committed. It is, however, cause to believe that
someone in the chain of his literary efforts perpetrated a fraud for
the purpose of enhancing the value of his story for sale.

Also, it is generally the rule that the unlawful acts of an agent are
attributed legally back to the principal, who in this matter was
Obama. A well-known example is that it is no excuse that your tax
return preparer filed a tax return with incorrect information.

It is not credible that Obama was not aware that his literary agent
published a false statement about his place of birth. Even if those
defending him were to claim that he was unaware, Obama had a duty of
care to ensure the accuracy of facts material to the sale of his
story. He did so over a decade later, but only when he was preparing
to run for president.

Compared to the big lies Obama tells regularly about policy and
politics, a literary fraud from 1991 is small potatoes. Then again,
Obama was relatively small potatoes at the time it first surfaced.